Lindon, L.J. v Kerr, J.D.C

[1995] FCA 403

CATCHWORDS

BIAS  - apprehension of bias of the Court on an issue of gender - whether constitution of the Full Court by male judges is a ground for disqualification - application of the doctrine of necessity to the constitution of the bench of courts - no issue of gender raised by the facts.

LINDON v KERR & ORS
VG 111 of 1995

DAVIES, SACKVILLE, NICHOLSON JJ.
13 June, 1995
Melbourne.

IN THE FEDERAL COURT OF AUSTRALIA                  )
  )
VICTORIA DISTRICT REGISTRY  )  No VG 111 of 1995
  )
GENERAL DIVISION  )

On appeal from a judgment of a single judge of the Federal Court of Australia

BETWEEN:               LEONARD JOHN LINDON

Appellant

AND:  HON JDC KERR MP -

MINISTER FOR JUSTICE

First Respondent

HON MH LAVARCH MP -

ATTORNEY-GENERAL

Second Respondent

MICHAEL ROZENES QC - DPP

Third Respondent

ASHLEY HEATH

Fourth Respondent

COMMONWEALTH OF AUSTRALIA

Fifth Respondent

Coram:           Davies, Sackville & Nicholson JJ.
Date:              13 June 1995
Place:              Melbourne

REASONS FOR DECISION

Davies J:         This application seeks that the members of the Court should disqualify themselves for the reason that the Court, as presently constituted, reflects gender bias.

It is true, in my opinion, that, as time goes by, the constitution of courts will better reflect the fact that women are as important an element of the community as males and that women have the capacity to undertake legal and other work.  Increasingly they are doing so.  And I would expect that, as time goes by, as women attain stature in the profession and as they obtain experience and knowledge which qualifies them for the work, they will be increasingly appointed to judicial office.  In due time, I expect that there will be a balance more or less between the sexes.  That is not to say that I would expect that anyone would try to achieve a 50/50 relationship.  But it seems to me that, as time goes by, as women develop in the profession, it will inevitably come about that there will be as many well qualified women as men available for appointment to the courts. 

This Court has been pleased that there have been five women of quality appointed to its bench and I think this Court has perhaps a greater proportion of women amongst its members than have most of the other courts of equivalent status in Australia.  Unfortunately, two of our women judges are mainly committed to other tasks and are not available for the general work of the Court.  That leaves us with three women judges and that is a fact which the Court and litigants must accept. 

Mr Lindon has come to this Court as it is presently constituted.  His application, in the first instance, was to the Federal Court and he now appeals to a
Full Court of the Federal Court.  He must take the Court as it is.  There is a principle in the field of administrative review, described as the principle of necessity.  The principle, which is set out in Wade on Administrative Law at pages 478-9, says this:

"In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply.  But there are many cases where no substitution is possible, since no one else is empowered to act.  Natural justice then has to give way to necessity, for otherwise there is no means of deciding and the machinery of justice or administration will break down."

It seems to me that that principle must apply in the circumstance of this case.  We cannot wait for many years before we have a balance of male and female judges.

There is no gender bias in the allocation of the women judges of this Court to the work of the Court.  They are allocated in the same way as are all judges.  It follows from that, of course, that women judges do work at single instance as they do in the Full Courts and cannot be expected to sit on the majority of appeals.  And so in a case such as the present, just the sheer proportion of numbers means that we have a Court constituted by male judges. 

There seems to me to be nothing whatever in the facts of the present case which would have justified the Chief Justice in making some special appointment to the bench by reason of a gender issue.  The applicant is a male, all the respondents other than the Commonwealth are male and the issue which Mr Lindon, the appellant, is putting, is a Human Rights issue concerning all the members of the community alike.  It seems to me, therefore, that there is nothing in the present case
which would have justified the Chief Justice in providing for a specially constituted court. For those reasons, in my opinion, the application that the judges should disqualify themselves should be dismissed.

Sackville J:   I agree with the conclusions reached by the learned presiding judge and, in particular, with his observations upon the application of the doctrine of necessity to the circumstances of this case.  I have read the materials provided to the Court by Mr Lindon in support of his motion.  In my opinion, none of the materials provided establishes the general proposition of law that Mr Lindon sought to advance.  That proposition, as I understood it, is that the mere fact that the bench of the Full Court of this Court comprises, in a particular case, three male judges, is of itself sufficient to create an apprehension of bias sufficient to disqualify the members of the bench.

The materials provided by Mr Lindon might be thought to make out a case and, perhaps, a persuasive case for consideration of the ways in which judges are appointed.  It might also bear upon such questions as education programs for judges and related matters.  However, those issues are quite separate from whether, in a particular case, there is a reasonable apprehension of bias by reason of the composition of the bench. 

Assuming that there could be a case in which the composition of the bench might be a basis for disqualification by reason of apprehension of bias, there has been nothing shown about the issues in this case that would create, in my view, such an apprehension of bias. 

I agree with what the learned presiding judge has said about the issues in this case.  Mr Lindon has pointed, in my opinion, to nothing that would suggest that this case would create the need for the appointment of a bench which specifically included female judges amongst its members. 

For these reasons I agree with the conclusion that has been expressed by the learned presiding judge that the motion should be dismissed.

Nicholson J:   I am of the same opinion.  Giving all respect to the materials relied upon by the applicant and taking them at their highest, they fail in three respects to support the argument he has made in this case.  Firstly, they do not, in my view, show any rule of law to the effect for which he contends.  Secondly, they do not disclose that this is an appropriate case in which such a rule of law should be made by the bench as a development of the common law.  And, thirdly, in my view, no basis for the application for the rule contended for to the facts of this case is made out. 

I agree with the reasons of the presiding judge and I, therefore, concur in the conclusion that the application for the bench to disqualify itself should be dismissed.

I certify that this and the 4 preceding pages
are a true copy of the reasons for judgment herein of
the Court.

Associate:

Date:   13 June 1995

Appearing for the appellant:  Mr Lindon (in person)

Counsel for the respondent:  K.H. Bell

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  13 June 1995

Date of judgment:  13 June 1995